Gounder v Chief Mediator [2011] FJHC 10; ERCC14.2009 (24 January 2011)

IN THE EMPLOYMENT RELATIONS COURT
AT SUVA
ORIGINAL JURISDICTION

CASE NUMBER: ERCC NO. 14 OF 2009

BETWEEN:

GANESH GOUNDER
Applicant

AND:

THE CHIEF MEDIATOR
1^st Respondent

AND:

THE PERMANENT SECRETARY
FOR THE PUBLIC SERVICE COMMISSION
2^nd Respondent

Appearances: Mr. D. Nair for the Applicant.
Ms. S. Serulagilagi for the Respondents.

Date/Place of Judgment : Monday, 24th January, 2011 at Suva.
Judgment of : The Hon. Justice Anjala Wati.

JUDGMENT

EMPLOYMENT ACTION – Right to file an action under the repealing legislation when cause of action arose prior to the coming into force of the repealing legislations.
_________________________________

Legislations

The Employment Relations Promulgation 2007.
The Employment Relations (Administration) Regulations 2008.

The Application

1. On the 16th day of December, 2009, the applicant filed an application for an order that the employment grievance reported to the 1st respondent on the 11th day of May, 2009 relating to the termination of the applicants employment by the 2nd respondent be listed before the Employment Relations Tribunal for adjudication and determination.
   
2. The Application is opposed by both the respondents.
   

References

3. In this judgment:-
   
   • (a) The Chief Mediator shall be referred to as the ("CM").
   • (b) The Chief Tribunal shall be referred to as the ("CT").
   • (c) The Employment Relations Tribunal shall be referred to as the ("ERT").
   • (d) The Employment Relations Court shall be referred to as the ("ERC").
   • (e) The Employment Relations Promulgation 2007 shall be referred to as the ("ERP 2007").
   • (f) The Employment Relations (Administration) Regulations 2008 shall be referred to as the ("ERAR 2008").
     

The Grounds for the Application

4. The applicant filed an affidavit in support with the application via which he has outlined the basis for his application.
   
5. His affidavit states that:-
   
   • That on the 11th day of May, 2009, the applicant filed his employment grievance with the 1st respondent on the unfair, unjust and wrongful process adopted by the 2nd respondent that resulted in the termination of his employment on 11th May, 2007.
     
   • The Mediation Unit conducted the first mediation on the 16th day of September, 2009. The grievance was not resolved.
     
   • On the 23rd day of September, 2009, the CM terminated the proceedings on the grounds that he is restraint from further processing the referral of the matter to the Tribunal.
     
   • The CM had failed to perform his statutory duty with procedural fairness when he refused to refer the grievance to the ERT for adjudication and determination as required under Regulation 9 (2) (b) and (3) of the ERAR 2008.
     
   • The CM should have issued a certificate in respect of the mediation conducted between the parties as per the requirement under Regulation 10 (1) of the ERAR 2008.
     
   • Regulation 11 of the ERAR 2008 outlines the procedure which the Mediation Unit should follow upon conclusion of the mediation.
     
   • The Chief Mediator had acted in excess of his jurisdiction and denied the applicant a hearing process in the determination of the grievance by the Tribunal.
     
   • The applicant had legitimate expectation that his grievance would be adjudicated upon but the actions of the 1st respondent had denied him the right to access of the ERT.
     

The Grounds In Opposition

6. The CM filed an affidavit on behalf of both the respondents in which he contended as follows:-
   
   • The CM was restrained from processing the employment grievance by referring to the ERT because the ERP 2007 came into effect on 2nd April, 2008 and does not operate retrospectively.
     
   • The applicant was dismissed from employment on 11th May, 2007 which was prior to the ERP and as such; the employment grievance could not be accepted as an employment grievance under the ERP 2007 as the Promulgation does not operate retrospectively to cover the applicant's date of dismissal.
     
   • He acted in good faith to assist the applicant in appointing a mediator to convene a mediation session with the hope that the parties will reach a satisfactory settlement.
     
   • There was no need to issue a certificate as it is only to be issued under Regulation 10 (1) of the ERAR 2008 if an employment grievance is resolved or referred to the ERT.
     
   • There was no obligation to refer the grievance to the ERT under the ERP 2007 as there was no grievance to refer.
     

The Submissions

7. Mr. Nair, on behalf of the applicant reiterated the contents of the affidavit and further submitted that only the ERT and the ERC have powers to decide on a question of substantive law and not the CM and when the CM decided on the question of jurisdiction, he went beyond his powers.
   
8. The Respondents counsel Ms. Serulagilagi repeated the contents of the affidavit and further stated as follows:-
   
   • The ERP 2007 and the ERAR 2008 does not operate retrospectively as there is no provision in the two statutes that indicates its retrospective operation and as such the applicant cannot report a grievance under the ERP 2007. The ERAR 2008 applies retrospectively only when trade disputes have been accepted by the Permanent Secretary in respect of which referral has either been made or not been made to the Arbitration Tribunal and where proceedings have commenced in the Arbitration Tribunal. This is not a matter which has been accepted by the Permanent Secretary under the Trade Disputes Act (Cap 97).
     
   • In this case, the employment grievance was first reported to the Mediation Unit under the ERP 2007. The Applicant had not reported the employment grievance under the Trade Disputes Act and as such the retrospective provisions of ERAR 2008 does not apply to the applicant as well.
     
   • The decision of the Mediation Unit is thus correct.
     

The Law and the Determination

9. The applicant in this matter had reported an employment grievance to the Mediation Unit by Form 1 and the report was made pursuant to s. 200(1)(a) of the ERP 2007 and Regulation 3(1) of the ERAR 2008. The details of the grievance was stated as follows:-
   

"The decision of the Public Service Commission to terminate my employment from 11/5/2007 was unfair, wrongful and in breach of natural justice. The process followed contravened Regulation 22 (2) and (3) of the PSC Regulation 1999 and PSC Circular 17/2005 dated 31st March, 2005. I filed my appeal with the Public Service Appeal Board and the appeal was heard but the Board was unable to deliver its ruling due to the abolishment of the Public Service Appeal Board pursuant No. 6 dated 14/4/2009"

10. It is not in dispute that the employment grievance arose prior to the ERP 2007 and the ERAR 2008 coming into force. The Legal Notice Number. 93 of 2007 expressly states the commencement dates for the ERP 2007 to be the dates of 1st October 2007 and 2nd April 2008. The ERAR 2008 came in force on 2nd April, 2008 as stated in Regulation 1(2) of the ERAR 2008.
    
11. The issue before this court is whether the CM should have referred the employment grievance reported to it by the applicant to the ERT when the said grievance was not resolved.
    
12. The only basis on which the CM refused to refer the dispute to the ERT was that the employment grievance arose before the commencement of the Act and as such it was not a grievance under the ERP 2007.The decision of the CM was made on the basis of a decision handed down by the CT on the 20th day of January, 2009 in Miscellaneous Action No. 6 of 2008 between Rupeni Silimuana and Telecom Fiji Limited.
    
13. An employment grievance is defined in s. 4 of the ERP 2007 and one of the definitions is "a grievance that a worker, may have against the worker's employer or former employer because of the worker's claim that the worker has been dismissed". The definition does not limit the grievances to grievances after the commencements of the Act and in absence of any such express words I am not prepared to hold to limit the right of the applicant that his grievance which arose before the commencement of the ERP 2007 and ERAR 2008 is excluded from the ERP 2007 and ERAR 2008.
    
14. There are no words to the effect in the ERP 2007 or the ERAR 2008 that states that the existing or vested right of a person is to be taken away. When an enactment deals with rights of action, unless it is so expressed in the Act, an existing right of action is not taken away.
    
15. Further, s. 57 of the ERAR 2008 reads as follows:-
    

"(1) This regulation applies to jurisdiction and powers vested in or exercisable by the Arbitration Tribunal or a member of that Tribunal immediately before the commencements date in relation to an act or omission occurring before the commencement date, except in relation to disputes referred to the Arbitration Tribunal for resolution under the Trade Disputes Act (Cap 97).

(2) on and after the commencement date, the jurisdiction and powers to which this regulation applies-

(a) cease to be vested in or exercisable by the Arbitration Tribunal or a member of that Tribunal; and

(b) are vested in the Employment Relations Tribunal".

16. If the Applicant had filed an employment grievance before the commencement of the ERP 2007 and ERAR 2008 under the Trade Disputes Act Cap 97, then the Arbitration Tribunal would have been exercised the jurisdiction over the matter. Further this grievance occurred before the commencement date and is not a dispute that was referred to the Arbitration Tribunal, so, s. 57 (1) of the ERAR 2008 is applicable.
    
17. One has to note that s. 57 (1) of the ERAR 2008 does not talk about a proceeding before the commencement of the Act. It talks about an act or omission before the commencement of the Act in respect of which the Arbitration Tribunal would have exercised jurisdiction, so, in essence, an act of dismissal before the commencement of the ERP 2007 and ERAR 2008 is clearly caught by the said section. In respect of that act of dismissal, the jurisdiction is now vested in the ERT.
    
18. The transitional provisions therefore cover employment grievances before the commencement of the ERP 2007 and ERAR 2008, in respect of which the jurisdiction now vests in the ERT.
    
19. So, if the jurisdictions vests in the ERT, the CM should have, when the matter was not resolved, referred it to the ERT for determination of the grievance pursuant to Regulation (3) of the ERAR 2008.
    
20. The commencement date means the date on which the law comes into force or operation. When the ERP 2007 and the ERAR 2008 came into force, the applicant's right to bring an employment grievance had not come to an end. He has the right to file the employment grievance and that right has been started under the ERP 2007.
    
21. In Miscellaneous Action No. 6 of 2008 between Rupeni Silimuana and Telecom Fiji Limited, which matter was decided by the tribunal, the issue was extension of time in respect of submitting the grievance to the worker's employer. In that case also, the employee had not filed any action which arose before the commencement of the repealing acts.
    
22. The case is distinguishable. In this case, the CM had accepted the employment grievance and mediated on the same, there was no question of the 6 months time limit of submitting the grievance to the employer and if there was, no objection was taken by the employer. In the other case, the CT had not dealt with the provisions of s. 57 of the ERAR 2008.
    
23. On the issue of costs, I am of the judgment that an order for each party to bear its own cost is justified. I do not think that there was any ulterior motive of the CM to close the file. It did so on its understanding of the law and the 2nd respondent abided the decision of the CM as a party to the action. This proceeding is a matter of law and parties needed clarification and so no one should be punished with costs.
    

Final Orders

24. The employment grievance of the applicant must be referred and listed in the ERT for determination.
    
25. The Registrar of the ERT and ERC must give the necessary effect to the orders of the ERC.
    
26. Each party to bear its own costs.
    

ANJALA WATI
Judge
24.01.2010